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Abdul Latif Vs. Akil Zaman - Court Judgment

LegalCrystal Citation
Subject;Civil
CourtGuwahati High Court
Decided On
Case NumberCivil Revn. No. 162 of 1980
Judge
ActsCode of Civil Procedure (CPC) , 1908 - Sections 148 and 151 - Order 9, Rule 13 - Order 43, Rule 1
AppellantAbdul Latif
RespondentAkil Zaman
Appellant AdvocateN.A. Laskar and A.B. Choudhary, Advs.
Respondent AdvocateA.K. Phukan, Adv.
DispositionRevision allowed
Excerpt:
.....failed to do so, and on 10-8-80 he filed an application praying for extension of time to deposit the amount. 13 of 1980 for failure to comply with the order dt. 30-5-80 the learned munsiff after having clearly observed that the petitioner had not been able to show as to his inability to take steps prior to the date fixed and as such -the petition for revival had got no force, he acted illegally and with material irregularity in granting the prayer for revival at a cost of rs. 3-7-80 he rejected the prayer for reduction of the cost and clearly dismissed the misc. 30-5-80. and having so dismissed he became functus officio and the order was clearly appealable under order 43 rule 1 and his later order of the same date, vacating his earlier order of dismissal, passed behind..........the defendant-respondent's application for revival of title suit no, 44 of 1979, requiring him to deposit cost of rs. 250/- by 7-6-1980; and the order dt. 3-7-1980 vacating the earlier order of dismissal of the misc. (j) case. 2. the plaintiff-petitioner's title suit no. 44 of 1979 was decreed ex parte on 25-2-80. the misc. (j) case no, 13 of 1980 was registered upon the application by the defendant-respondent under order 9 rule 13 for setting aside the ex parte decree. by order dt. 30-5-80 the defendant respondent was required to deposit the cost of rs. 250/- by 7-6-80 when only final order would be passed. the defendant-respondent failed to do so, and on 10-8-80 he filed an application praying for extension of time to deposit the amount. it appears that no decisive order was passed on.....
Judgment:

K.N. Saikia, J.

1. The plaintiff petitioner in this Civil Revision challenges the order dt. 30-5-80 passed by the Sadar Munsiff, Gauhati in Misc. (J) case No. 13 of 1980 on the defendant-respondent's application for revival of Title Suit No, 44 of 1979, requiring him to deposit cost of Rs. 250/- by 7-6-1980; and the order dt. 3-7-1980 vacating the earlier order of dismissal of the Misc. (J) case.

2. The plaintiff-petitioner's Title Suit No. 44 of 1979 was decreed ex parte on 25-2-80. The Misc. (J) case No, 13 of 1980 was registered upon the application by the defendant-respondent under Order 9 Rule 13 for setting aside the ex parte decree. By order dt. 30-5-80 the defendant respondent was required to deposit the cost of Rs. 250/- by 7-6-80 when only final order would be passed. The defendant-respondent failed to do so, and on 10-8-80 he filed an application praying for extension of time to deposit the amount. It appears that no decisive order was passed on this application. On 3-7-80 the defendant-respondent, instead of depositing the amount, filed an application for reduction of the cost amount from Rs. 250/- to Rs. 100/-. The Court refused to do so and dismissed the Misc, (J) case No. 13 of 1980 for failure to comply with the order dt. 30-5-80. Later, on the same day, the defendant-respondent filed another application stating that he deposited the cost of Rs. 250/-, and praying for revival of the case, whereupon the Court passed the second impugned order vacating his earlier order of dismissal of the Misc. (J) case, and ordering that the case should proceed; and fixing 11-7-80 for stamps in the main suit. Hence this petition.

3. Mr. N.A. Laskar, the learned counsel appearing for the plaintiff-petitioner submits, inter alia, that in his order dt. 30-5-80 the learned Munsiff after having clearly observed that the petitioner had not been able to show as to his inability to take steps prior to the date fixed and as such -the petition for revival had got no force, he acted illegally and with material irregularity in granting the prayer for revival at a cost of Rs. 250/- payable by 7-6-80; that even if that order is held to be valid, by his earlier order dt. 3-7-80 he rejected the prayer for reduction of the cost and clearly dismissed the Misc. (J) case No. 13 of 1980 in terms of the order dt. 30-5-80. and having so dismissed he became functus officio and the order was clearly appealable under Order 43 Rule 1 and his later order of the same date, vacating his earlier order of dismissal, passed behind the back of the plaintiff-petitioner, is clearly beyond jurisdiction and violative of the principles of natural justice and hence liable to be quashed.

4. Mr. A.K. Phukan, the learned counsel appearing for the defendant-respondent on the other hand submits that there is no infirmity in the order dt. 30-5-80 on the prayer for revival requiring the defendant-respondent to deposit cost of Rs. 250/- by 7-6-80 when only necessary order would follow. The defendant-respondent in his application dt. 10-6-80 prayed for extension of time and that application was ordered to be put up on 16-6-80 which meant that the prayer for extension was entertained though no order was passed. His next application dt. 3-7-80 for reduction of the cost from Rs. 250/- to Rs. 100/- was no doubt rejected, but that did not disentitle him to deposit the amount of Rs. 250/- and he having so deposited the amount on 3-7-80 the Court was justified in accepting the amount as per order dt. 30-5-80 and in vacating its earlier dismissal order. Counsel submits that the conduct of the Court showed that the time was extended by implication; and hence this petition is not maintainable.

5. For proper appreciation of the arguments the material portions of the orders may be extracted. The operative portion of the order dt. 30-5-80 reads:

'It is crystal clear from the order dt. 25-2-80 that the advocate for the petitioner declined to take steps and allowed the suit to proceed ex parte. So considering the facts and circumstances of the case it is seen that the petitioner has not been able to show as to his inability to take steps prior to the date and as such the petition for revival has got no force. However considering the fact of his illness on the date fixed and the interest of justice the prayer for revival may he allowed only at a cost of Rs. 250/- to the opposite party plaintiff decree-holder. Petitioner will deposit the amount by 7-6-80 when only necessary order will follow.'

6. The plaintiff-petitioner having not challenged this order earlier, and he having relied on the first order dt. 3-7-80 whereby the Misc. (J) case was dismissed, he cannot now be allowed to turn back and challenge this prior order also in this revision petition.

7. The next order is dated 3-7-80 and is to the following effect :

'Seen the petition No. 492/80 filed by the petitioner. Opposite party is present. In the previous petition of the petitioner, there was no prayer for reduction of cost money. The prayer of today's petition is not granted. So in terms of the order dt. 30-5-80, the Miscellaneous case is dismissed.'

8. The later order dt. 3-7-80 is as under:--

'The petitioner by his petition No. 4931/80 has deposited the cost of rupees 250.00. The deposit may be made with the Nazir and then file the receipt. The opposite party has in the meantime left the court. The order of dismissal of the Miscellaneous case is vacated and in terms of the order dt. 30-5-80 on payment of Rs. 250.00 to the opposite party, it is ordered that the main suit should be proceeded with. Fix 11-7-80 for steps for the main suit.'

9. The question is what was the effect of the order dt. 30-5-80? Under Order 9 Rule 13 three kinds of orders are generally passed as to costs, payment into court, or otherwise. In the first kind, the decree is set aside and the petitioner is asked to pay a cost within prescribed time. In the second kind, the revival is ordered subject to payment of the cost within a fixed date, failing which the case would automatically stand dismissed on that date. In the third kind, the party in default is ordered to pay a certain cost; may be within a fixed date, on payment of which alone the final order as to revival would be passed. In the first kind, the Court may expressly or impliedly Under Sections 148 or 151 extend the time and failure to deposit within the prescribed date would by itself have no effect on the revival already made. In the second kind the case would automatically stand dismissed on the expiry of the fixed day if cost is not deposited by that day and the court would be functus officio thereafter. In the third kind, a final order of dismissal need be passed on failure to deposit the cost by the fixed date., and till then the case would not stand dismissed.

10. The instant case fits in neither the first nor the second but the third kind. The order dt. 20-5-80 clearly said that the petitioner would deposit the amount by 7-6-80 when only necessary order would follow. In such a case deposit of the amount or failure to deposit by the appointed day is a pre-requisite for the court to pass the necessary order as to revival. It will, of course, be open for the court Under Section 148 or even 151 C. P. C. to extend the time until the final order as to revival or dismissal is passed by the Court. Extension of time again may be express or implied from the conduct of the Court. (AIR 1925 Pat 299, AIR 1961 SC 882).

11. In Dinesh Chandra Nath v. Surendra Chandra Nath, AIR 1971 Assam 156, the learned Munsiff disposed of the revival petition under Order 9 Rule 9 of the C. P. C. by allowing the petition and restoring the suit on condition that the plaintiff must pay cost of Rs. 15/- by 20-12-67. In that order he clearly said that if the plaintiff petitioners failed to pay the cost within the fixed time, the revival petition would stand dismissed. On these facts it has been held that it is settled law that if a suit is revived on condition of payment of cost within the fixed time and if the order says that if the cost is not paid within the fixed time the application for revival of the suit shall stand dismissed, then in such case, on the default of the petitioner to make payment of cost within the fixed time, the order of dismissal of the petition takes effect automatically.

12. In Mst. Dagri v. Kea Kachari AIR 1976 Gau 16, the Court categorically said that the cost must be paid on 29-1-1970, failing which the misc. case would stand dismissed. It has been observed that if the order is couched in such words, then no further order regarding dismissal of the case for not complying with the mandatory direction of the Court regarding payment of the cost need be passed.

13. The instant case is distinguishable on facts. Here the order was not couched in such a language. It clearly said that necessary order would follow only on deposit of the cost by 7-6-80. The prayer for revival might be allowed only when the cost was paid and not otherwise. This being so it was open for the defendant-respondent to apply for extension of time. In the event of such an application before dismissal, it would be open for the Court to extend the time expressly or by implication.

14. In this case, having failed to deposit by fixed date and failing to obtain extension of time, instead of depositing the petitioner applied for reduction of the cost amount from Rs. 250/- to Rs. 100/- only on 3-7-80 i.e. after more than 25 days and the Court clearly rejected that prayer and dismissed the Misc. (J) case on 3-7-80. It having done so it became functus officio in the matter of that case. Order 43 Rule 1 (d) clearly provides that an appeal shall lie under the provisions of Section 104 C. P. C. from an order under Rule 13 of Order 9 rejecting an application (in a case open to appeal) for an order to set aside the decree passed ex parte. It was a case open to appeal. There is, therefore, no escape from the conclusion that the first order dt. 3-7-80 was an appealable order. This being so, the later order of the same day could not have been within jurisdiction of the same Court; and that too passed after the opposite party had in the meantime left the Court. The order of dismissal of the Misc. (J) case set at rest a valuable right on the plaintiff petitioner which he could not have been deprived of by a Court without jurisdiction and in violation of the principles of natural justice. There could be no extension of time after the dismissal Order was passed. The Application No. 4931 shows that it was made after the case was dismissed. The order also ex-facie says -- 'The deposit may be made with the Nazir and then file the receipt,' which means that the amount was yet to be deposited. The Court, therefore, had neither justification nor jurisdiction to pass the impugned order. It is also clearly violative of the principles of natural justice and cannot be sustained.

15. The impugned order passed later on 3-7-80 vacating the earlier dismissal order and directing deposit of the cost money is quashed. The revision petition is allowed with cost of Rs. 100/-(one hundred). Rule made absolute.


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